Presidential Order amending Constitution (Application to Jammu and Kashmir) Order, 1954

What is the issue?

The Centre's executive order amending the Constitution (Application to Jammu and Kashmir) Order, 1954 is challenged in the J&K high court.
Here is a brief look on the evolution and purpose of the 1954 Order and the disputes related to it.

What is the executive order for?

The Union Cabinet recently approved the proposal of the J&K Governor’s administration to amend the Constitution (Application to Jammu and Kashmir) Order, 1954.
Following this, President Ram Nath Kovind issued an executive order amending the 1954 Order.
The objective was to extend the provisions of the 77th and 103rd Constitutional Amendments to the state.
The Centre said that the amendment would give benefit of promotion in service to the Scheduled Castes, and Scheduled Tribes.
It would also extend the 10% reservation for economically weaker sections in educational institutions and public employment.
The Centre’s move has now been challenged in the Jammu & Kashmir High Court.

Why is it being challenged?

Major J&K parties said the order violated Article 370 which regulates J&K’s relationship with the Union.
The power of the Governor to make the recommendation without the concurrence of the state government has been challenged.
The petition pleaded the court to struck down -

In 1986 too, an amendment to the 1954 Order was issued just with the concurrence of Governor's administration.
It extended to J&K, Article 249 of the Indian Constitution, which describes the power of Parliament to legislate, in the national interest, even on matters in the State List.
The petition challenging this is still pending.

What were the terms of J&K's entry into Indian Union?

Maharaja Hari Singh, who was ruling J&K, signed the Instrument of Accession (IoA) in October, 1947.
J&K then gave up control over only 3 subjects which are Defence, Foreign Affairs, and Communications.
A separate Constituent Assembly of J&K was planned to frame the J&K Constitution, and to work out J&K’s constitutional relationship with New Delhi.
Under Article 370 of the Indian Constitution, only two articles of the Constitution apply to J&K.
One is Article 1 which defines India, and the other is Article 370 itself.
Article 370 provides that other provisions of the Indian Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”.
Notably, this is done only with the concurrence of the state government.

What was the 1954 Presidential Order for?

The decisions to extend the provisions of the Indian Constitution other than those specified in the IoA had to be ratified by the J&K Constituent Assembly.
The J&K Constituent Assembly was yet to be set up then.
But the Centre wanted to extend a few provisions of the Constitution to streamline J&K’s relationship with the Union.
Thus, a Presidential Order was issued on January 26, 1950 itself, with the state government’s concurrence.
On November 5, 1951, J&K’s Constituent Assembly was convened.
Soon, the 1950 Order was replaced by The Constitution (Application to Jammu and Kashmir) Order, 1954.
This Order applied to J&K the provisions of Part-III of the Indian Constitution that relates to fundamental rights.
Besides, it introduced Article 35A which protected laws passed by the state legislature of J&K in respect of permanent residents.
Any protections offered to its residents cannot be challenged on the ground that they violated any of the fundamental rights.
This order was ratified by the Constituent Assembly that also framed the J&K Constitution, before dispersing in November, 1956.

What is the contention thereafter?

The 1954 Order had the requisite concurrence of both the state government and the J&K Constituent Assembly.
But subsequently, 42 Presidential orders have been issued, all of which were amendments to the 1954 mother order.
Through these orders, successive central governments have extended 94 out of the 97 entries in the Union List, and 26 out of the 47 in the Concurrent List to J&K.
They have also made 260 out of the 395 Articles of the Indian Constitution applicable to J&K.
This list does not include The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, and the GST Acts.
But notably, none of these amendments to the 1954 Order have fulfilled the requirement of ratification by the J&K Constituent Assembly.
To this, the Centre has argued that an elected state government’s consent is enough.

In 1959, the Supreme Court too observed that the Constitution-makers were anxious that the said relationship should be finally determined by the State's Constituent Assembly itself.
A decade later, the court ruled that Presidential orders could still be made through Article 370.
Also, in 1972, the court said the Governor is the head of government aided by a council of ministers.

Is the present order justified?

The latest order only has the consent of the Governor without the requisite aid and advice of the Council of Ministers.
Understandably, the Governor acts only as a nominee of the Union government.
S/he does not meet the definition of state government as laid down by Article 370 and the Supreme Court.
Major J&K parties have also always opposed the amendments to the 1954 Order without ratification by the Constituent Assembly of the state.

Source: Indian Express

Quick Facts

Constitution (77th Amendment) Act

SCs and STs have been provided reservation in promotions since 1955.
This was discontinued following the judgement in the case of Indra Sawhney wherein it was held that it is beyond the mandate of Article 16(4) of the Constitution.
Subsequently, the Constitution was amended by the Constitution (77th Amendment) Act, 1995.
It inserted a new clause in Article 16 to enable the government to provide reservation to SCs and STs in promotion.

Constitution (103rd Amendment) Act

The Act aims to provide reservation of up to 10% in public employment and higher education for economically weaker sections.